Brinsmade v. Groll
| Decision Date | 04 December 1883 |
| Citation | 14 Mo.App. 444 |
| Parties | H. BRINSMADE ET AL., Appellants, v. ROBERT GROLL, Respondent. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, LUBKE, J.
Reversed and remanded.
W. B. HOMER, for the appellants.
L. J. SMITH, for the respondent.
This was an action of replevin, before a justice of the peace, for a sewing machine. On an appeal to the circuit court, and trial before a jury, the judgment was for the defendant. The plaintiffs' evidence tended to show that the plaintiffs sold the machine to the defendant for $55; that the defendant executed his promissory note for the same, expressing that the same was to be paid at the rate of $3 per month; that he paid $3 down, and received a receipt for the same upon the note; that, at the same time, he executed a deed of trust, in which he conveyed the machine to the plaintiff Brinsmade in trust, with power to take possession of and sell the same upon default in any of the payments stipulated for in the note, and that, defaults in these payments having been made, the plaintiffs brought the present action.
The evidence of the defendant tended to show that the machine was sold to his wife, and not to himself, and that he never executed the note and deed of trust. The defendant's wife was permitted to testify, against the objection of the plaintiff, that the machine was bought by her; that the first payment of $3 was made by her, not at the office of the Howe Sewing Machine Company, as the plaintiffs' witness testified, but at her own house; that the subsequent payments had been made by her, and that she had refused further payments because the machine had gotten out of order and the Howe Sewing Machine Company had refused to repair the same, or to substitute a good machine for the same.
The only question which we shall consider relates to the admissibility of this testimony of the defendant's wife. We think that this testimony was not admissible. The testimony of a wife in an action against her husband is not admissible at common law. No statute of this state has created an exception to this rule, such as would admit the testimony of the defendant's wife in this case. Section 4010 of the Revised Statutes would have admitted her to testify, if she had been a party to the record, other than a nominal party. Tingley v. Cowgill, 48 Mo. 291; Fugate v. Pierce, 49 Mo. 441; Harriman v. Stowe, 57 Mo. 93; Owen v. Brockschmidt, 54 Mo. 285. Nor was ...
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Tockstein v. Bimmerle
......St. 1906, her. incompetency continues as before. [Layson v. Cooper,. [131 S.W. 128] . 174 Mo. 211, 73 S.W. 472; Brinsmade v. Groll, 14. Mo.App. 444.] There is nothing in the statute referred to. which in any manner suggests the competency of. defendant's wife in this ......
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Layson v. Cooper
...of Appeals being of the opinion that that decision was in conflict with the decision of the St. Louis Court of Appeals in Brinsmade v. Groll, 14 Mo. App. 444, the cause was certified to this court. The plaintiff's evidence tended to prove the following: Plaintiff was the owner of a farm, wh......
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Tockstein v. Bimmerle
...St. 1906, p. 2536), her incompetency continues as before. Layson v. Cooper, 174 Mo. 211, 73 S. W. 472, 97 Am. St. Rep. 545; Brinsmade v. Groll, 14 Mo. App. 444. There is nothing in the statute referred to which in any manner suggests the competency of defendant's wife in this case, and the ......
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Brinsmade v. Groll
...14 Mo.App. 444 H. BRINSMADE ET AL., Appellants, v. ROBERT GROLL, Respondent. Court of Appeals of Missouri, St. Louis.December 4, APPEAL from the St. Louis Circuit Court, LUBKE, J. Reversed and remanded. W. B. HOMER, for the appellants. L. J. SMITH, for the respondent. OPINION THOMPSON, J. T......